ALHAJI IBRAHIM TAIWO AJOMAGBERIN & ORS v. ALHAJI RAHEEM SALAU & ORS (2018)

ALHAJI IBRAHIM TAIWO AJOMAGBERIN & ORS v. ALHAJI RAHEEM SALAU & ORS

(2018)LCN/11792(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of June, 2018

CA/L/256/2002

RATIO

POWER OF THE APPEAL COURT TO REFRAME ISSUES

An Appeal Court may reframe issues for determination in a bid to address the issues of the parties, or adopt issues of the parties where so doing would serve the interest of justice, or/and address the real grievance in the appeal or effectively resolve the issues in controversy between the parties per TIJJANI ABUBAKAR, J.C.A.

FAMILY MEMBER CANNOT INSTITUTE CASE ON BEHALF OF THE FAMILY WITHOUT AUTHORITY

JUSTICES

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

Between

ALHAJI IBRAHIM TAIWO AJOMAGBERIN
2. ZAKARIYAU OYEROKUN OJORA
3. MUDASHIRU KOPADA
(For themselves and on
behalf of DEYARI KUEJI and
KUMUYI ruling Houses, the
Obanikoro Chieftaincy family
of LAGOS) Appellant(s)

AND

ALHAJI RAHEEM SALAU
2. RAHEEM SALAU (NIG) LTD
3. LATEEF GAJI
4. KAYODE BAKARE
5. LAYI AJAYI-BEMBE
6. SOJI AJAYI-BEMBE
7. MOSUNMOLA AJAYI-BEMBE
(3rd and 7th Defendants are
sued for themselves for and
on behalf of ILUMO Ruling
Houses & AJAYI-BEMBE
Descendants of Obanikoro
Chieftaincy Family of Lagos) Respondent(s)

TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment):

The Appellants in this appeal commenced action against the Respondents at the Court below seeking for the following reliefs:
a. A declaration that the property situates, lying and being at No. 108 Nnamdi Azikiwe Street Lagos, (otherwise known as P.Z. BUILDING) belongs to the OBANIKORO CHIEFTAINCY FAMILY OF LAGOS.
b. A declaration that the building lease executed in respect of No. 108 Nnamdi Azikiwe Street Lagos in favour of the 1st & 2nd defendants either the 3rd -6th defendants OR their servant’s agent’s, privies or cohort is wrongful, illegal, null & void and of no effect whatsoever.
c. A declaration that the DEMOLITION (partial or complete) of the property (i.e. No. 108, NNAMDI AZIKIWE STREET, LAGOS) by the defendants, their servants, agents, or privies is wrongful and illegal.
d. An order directed against the defendants for the payment of One Million Naira (1,000,000.00) being damages for wilful and unlawful demolition of the said property situate at NO. 108. Nnamdi Azikiwe Street, Lagos.

An order of perpetual injunction restraining the defendants whether by themselves, their servant’s agents or privies from further demolishing constructing, redeveloping or dealing in any manner whatsoever with the property situate lying and being at No. 108 Nnamdi Azikiwe Street, Lagos which property is also known as P.Z. BUILDING, LAGOS.

At the time the writ of summons was taken, the building subject matter of litigation was half-way demolished by the Respondents, the Appellants as Plaintiffs filed series of applications seeking to restrain the Respondents from the on-going demolition of the subject matter. After demolition of the structures, the Respondents commenced and completed reconstruction, it was at this point, the lower Court on the 15th day of October 2001 now made an order that the newly reconstructed structures must not be occupied, in other words the Respondents must wait for the Court to determine the suit.

While the order restraining occupation of the newly reconstructed building was pending, the 4th Respondent in this appeal brought an application dated 5th February, 2001, contending that the Plaintiffs had no authority of the family to institute the action against the Respondents. The Court below took the application and gave ruling striking out the suit on the ground that the Plaintiffs had no authority to bring the action.

This appeal is therefore against the Ruling of the High Court of Lagos State delivered by Akinsanya J, on the 7th day of December, 2001 in suit No. LD/3543/2000, striking out the suit. The Appellants became aggrieved by the decision and therefore filed amended Notice of appeal containing four grounds of appeal on the 15th day of March 2018, deemed as properly filed and served on the 23rd day of March 2018.

Learned Counsel for the Appellants Olusegun Fabunmi filed the amended Appellant’s brief of argument on the 15th day of March 2018, and Amended Appellants reply on the 12th day of April 2018.

In the Amended Appellant’s brief of argument learned Counsel on behalf of the Appellants nominated three issues for determination, the issues are as follows:
1. Whether or not an application challenging the authority to sue is the same as challenging the LOCUS STANDI to institute an action.
II. Whether or not an application challenging authority to sue is the same as the one challenging legal capacity to institute an action.
III. Whether or not a member of a family requires authority to institute an action to protect family property.

The 1st and 2nd Respondents filed no briefs of argument, the 3rd, 4th 5th and 5th however filed their amended brief through learned Counsel H. O. Igbokwe on the 10th day of April 2018.

The Respondents through learned Counsel identified just one issue for determination and the issue is also reproduced as follows:
“Whether the Appellants could bring the action in suit No. LD/3543/2000 on behalf of the Obanikoro Chieftaincy family, when the said family is not in support of the action and did not authorise the Appellants to institute same”.

SUBMISSIONS OF COUNSEL FOR THE APPELLANTS
Submitting on the Appellants first issue for determination,learned Counsel referred this Court to page 25-30 of the records of appeal to submit that the lower Court held the view that the Appellants had no locus standi to bring the action against the Respondents. Learned Counsel for the Appellants submitted that a party’s authority to sue is different from his locus standi. Counsel said lack of locus standi means the Appellant has no sufficient interest in the subject matter of litigation. Counsel submitted that challenge to locus standi is a challenge to legal capacity of the party to institute legal proceedings in Court, he relied on the decisions in OWODUNNI Vs. REGISTERED TRUSTEES OF CELESTIAL CHURCH OF CHRIST (2000) 10 NWLR (Pt. 675) 315, and the decision in ADESANYA Vs. PRESIDENT & ANOR (1981) 5 SC 112. Learned Counsel for the Appellants submitted that where locus standi is challenged, the contention is that the person who instituted the action has no interest or sufficient interest in the matter. Learned Counsel for the Appellants submitted the applicants/Respondents did not challenge the locus standi of the Appellants, it was therefore erroneous on the part of the Court to hold that Appellants had no locus standi, and used the same as basis for striking out the suit. Counsel for the Appellants contended that the order striking out the suit is misconceived and therefore urged this Court to set aside the decision.

On issue number two, learned Counsel for the Appellants adopted his submissions on issue Number One, and submitted that the 4th Respondent did not at any point in his application before the lower Court challenge the legal capacity of the Appellants to institute the action. Counsel therefore submitted that issue of lack of legal capacity as a basis for striking out the Appellants suit was misconceived.

On issue number three, learned Counsel for the Appellants submitted that the property subject matter of this appeal is a family property and that the Appellants belong to the Obanikoro family the owners of the said property. Counsel referred this Court to the decisions in SOGUNLE Vs. AKERELE NMLR Pg. 58 at 50, ALHAJI LAMIDI DAWODU OLOWOSAGO & ORS VS. ALHAJI AMUDA ADEBANJO (1988) 43 NWLR PT. 88 Pg. 275 at 278, SUFIANU Vs. ANIMASHAUN (2000) 14 NWLR Pt. 688 at 650, and EFFIOM VS. IRONBAR (2000) 3 NWLR (Pt. 650) Page 545, That since Appellants are members of the family, they require no authorisation to legally maintain an action in Court to protect their property. Learned Counsel also urged this Court to note the difference between contract entered into on behalf of family by family members and the validity of an action by family members towards protecting family property. Counsel said the action in this appeal relates to protection of family property by family members not contract entered into by family members on behalf of their family.

Learned Counsel for the Appellants referred to the decision in SHELL PETROLEUM DEV COMPANY NIGERIA LIMITED Vs. CHIEF. T. EDAMKUE & ORS. (2009) ALL FWLR (Pt. 489) 407 at 429, to submit that a person has the right to protect his family property and can sue for himself or on behalf of his family in representative capacity. Again it was submitted on behalf of the Appellants that once it is shown or expressed on the writ that the action is brought in a representative capacity only member of that family or community can challenge the capacity. Counsel relied on the decision in ELF PETROLEUM NIGERIA LIMITED Vs. DANIEL C. UMAH & ORS (2018) LPELR-43600 (SC).

Learned Counsel for the Appellants therefore submitted that the action by members of the family to protect family property with or without authority is valid and maintainable. He therefore urged that the appeal be allowed.

SUBMISSIONS OF COUNSEL FOR THE 3rd, 4th, 5th AND 6TH RESPONDENTS
I earlier on stated that the 1st and 2nd Respondents filed no briefs of argument. I will therefore consider the submission of learned Counsel for the 3rd, 4th, 5th and 6th Respondents. Learned Counsel for the Respondents just nominated one issue for determination where he said from the Judgment delivered by the lower Court, two things came to light, that the Obanikoro Chieftaincy family did not give the Appellants any authorisation to institute the suit. That the Obanikoro Chieftaincy family was not in support of the Appellants and the action commenced by them because the Head of the Obanikoro Chieftaincy family and the Principal elders of the family are in a better position to know which property is and which one is not family property.

It was the contention of learned Counsel for the Respondents that the lower Court found as a fact that the entire Obanikoro family were together in their objection to the suit filed by the Appellants. Counsel also contended that even though the Appellants contended that they obtained written authorisation from the three branches of the Obanikoro family, they failed to establish the authorisation at the trial. Counsel also submitted that the learned trial Judge found that there is distinction between external aggression and internal affairs of family, Counsel said where there is external aggression against family property from an outsider family members may require no authorisation to defend the property, but where the disagreement arises from internal affairs of the family, the head of the family or the principal members, of the family are the best to know which property constitutes family property and which one does not. Counsel said the instant appeal has to do with internal family affair as opposed to external affairs, it was clearly stated by the principal members of the family that the property subject matter of litigation does not belong to the Obanikoro chieftaincy Family, Appellants therefore had no business instituting the action.

The learned Counsel for the Respondents submitted that the learned trial Judge was right when he held that Appellants needed written authorisation from relevant and competent persons in the family to commence action on behalf of the family. Counsel for the Respondents said the learned trial Judge was therefore right in relying on the decisions in, AKAPO vs. HAKEEM-HABEEB (1992) 6 NWLR (Pt.247) 255 at 293, BALOGUN Vs. BALOGUN (1935) 2 WACA 290, AGARAN vs. OLUSHI (1907) INLR 65 in coming to the conclusion that the Appellants needed the written authorisation of competent persons within the family to commence the action to protect family property.

Counsel for the Respondents submitted that from the materials before the Court, the property subject matter of litigation 108 Nnamdi Azikiwe Street Lagos belongs to Ajayi-Bembe family and not Obanikoro Chieftaincy family. That since the Appellants are not the owners of the property, they have no right to file the action, that right of action only arises where the interest of a person is adversely affected, he relied on the decisions in ASHEIK vs. GOVT OF BORNO STATE (1994) 2 NWLR (Pt.326) Pg.344 at 348, UBA Vs. MICHAEL O. ABIMBOLA & CO (1995) 9 NWLR (Pt. 419) 371.

Learned Counsel for the Respondents said, the learned trial Judge was right in striking out the suit on the ground that the Appellants did not have sufficient interest to sue, the action is therefore an exercise in futility, he therefore urged this Court to dismiss the appeal.

APPELLANTS REPLY TO THE 3RD TO 6TH RESPONDENTS.
In the amended reply to the 3rd- 6th th Respondents brief, Counsel said the three authorities cited by the Respondents are not relevant to the subject matter of appeal, Counsel went further to elaborate on the authorities and finally submitted that the authorities were cited out of con, and it would be in appropriate for a party to be given what it did not ask for as done by the learned trial Judge. Counsel relied on the decision in ODOFIN Vs. AGU (1992) 3 NWLR 350. Counsel then submitted that a party must not be awarded what he does not ask for or pleaded by either party.

Learned Counsel for the Appellants said what the 4th Respondent as 4th Defendant asked for at the Court below was that the action be dismissed because the Plaintiffs had no authority of Dayeri, Kueji, and Kumuyi branches of the Obanikoro Chieftaincy family to commence the action. Learned Counsel said the issue of locus standi was not before the Court, the lower Court was therefore in error to have raised the issue on its own, he relied on the decisions in ABBAS Vs SOLOMON (2001) 7 MJSC 149, and NAF Vs. SHEKETE (2003) 2 MJSC 53.

The Appellants re-argued their appeal again in the amended reply brief, the amended reply is substantially a repetition of the submissions of learned Counsel for the Appellants in their amended brief of argument, this is obviously not the purpose of a reply brief, a reply brief is essentially an opportunity for the Appellant to address the new points raised by the Respondent in his brief of argument where the Appellants brief taken as it is cannot effectively and efficiently tackle the new points, the Appellants amended reply brief has defeated the purpose of reply brief, I have however taken some part of the reply, I am sure it is not necessary to run through the entire reply as so doing will amount to embarking on another round of arguments totally unnecessary and uncalled for. Let me close the reply by stating that Appellants finally urged that this appeal be allowed, and further urged that the suit be remitted for trial on the merit before the Court below.

RESOLUTION
The issues for determination crafted by learned Counsel for the Appellant are seemingly fragmented components of Respondents sole issue for determination. I am of the view that the three issues can be effectively collapsed into Respondents sole issue, let me also state that, determination of Respondents sole issue for determination will effectively and effectually resolve the issue in controversy between the parties in this appeal, it is now settled that an Appeal Court may reframe issues for determination in a bid to address the issues of the parties, or adopt issues of the parties where so doing would serve the interest of justice, or/and address the real grievance in the appeal or effectively resolve the issues in controversy between the parties see: ABIOLA & SONS BOTTLING CO. LTD Vs. SEVEN-UP BOTTLING COMPANY (2012) LPELR-9279 (SC), BIARIKO Vs. EDEH OGWUILE (2001) 12 NWLR (Pt. 726) 235 at 255 and OBIUWEUBI Vs. CENTRAL BANK OF NIGERIA (2011) 7 NWLR (Pt.1247) 455.

I am of the view that the issue to resolve in this appeal is “Whether the Appellants could bring the action in suit No. LD/3543/2000 on behalf of the Obonikoro Chieftaincy family, when the said family is not in support of the action and did not authorise the Appellants to institute same”.
The narrow issue is therefore that while the Appellants contend that it is not necessary to obtain written authorisation from principal members of the Obanikoro Chieftaincy family before commencing their action, the Respondents on the other hand contended that written authorisation to sue on behalf of the Obanikoro Chieftaincy family must be obtained by the Plaintiffs/Appellants.

The Court upon considering the submissions of Counsel agreed that the Appellants as Plaintiffs needed written authorisation from the Principal members of the Obanikoro Chieftaincy family in order to commence valid and competent action against the Respondents, and since they had no such authorisation the lower Court found that the action was incompetent, it was therefore accordingly struck out. This is therefore the narrow issue to resolve in this appeal. The Appellants as Plaintiffs at paragraphs 13-14 of the statement of claim at page 5 of the records of appeal said the property was leased to the 1st and 2nd Defendants as developers and building agreement was secretly executed and hidden from the 3 other Ruling Houses as represented by the Plaintiffs, but the Ruling Houses clearly denied giving any authorisation to the Plaintiffs to sue.

The law is well settled that no family member can institute an action for and on behalf of the family without the express authorisation of the family. The law is also settled that any member of the family may defend the action in respect of family land where the benefit of success goes to the entire members of the family. In ALH MOH’D LAYINKA GALADIMA OF ILORIN & ORS Vs. ATTORNEY GENERAL OF KWARA STATE & ORS (2004) LPELR-12626 (CA) this Court per MIKA’ILU (JCA) (of blessed memory), while dealing with whether a member of a family can institute a representative action without authorisation said as follows:
It is trite that no member of a family can institute an action for and on behalf of the members of the family without the consent or authorisation of the family, but any member can personally defend it family land though the benefit of his success goes to the entire members of the family see: AKAPO Vs. HAKEEM-HABEEB…
I carefully read the decision in AKAPO Vs. HAKEEM-HABEEB & ORS (1992) LPELR-325 (SC), the Supreme Court of Nigeria considered the effect of contracts made by family head/members of the family on behalf of the family. In dealing with this issue, KARIBI-WHYTE JSC said as follows:
“Contracts made by the head of the family are valid. See BALOGUN Vs. BALOGUN (1935) 2 WACA 290. On the other hand, no individual member or collection of members of the family have legal capacity to enter into contracts for or on behalf of the family. Such contracts without the participation of the head of the family are void: – See AGARAN V. OLUSHI (1907) 1 NLR 66.
The issue before the lower Court has to do with building lease of the property 108 Nnamdi Azikiwe Street Lagos subject matter of litigation which gave rise to this appeal. Let me state at this stage that the issue at the Court below has to do with the propriety of the lease executed in respect of the property which belongs to the Obanikoro Chieftaincy family. Part of the claim before the lower Court is again reproduced as follows.
A declaration that the property situates, lying and being at No. 108 Nnamdi Azikiwe Street Lagos, (otherwise known as P.Z. BUILDING) belongs to the OBANIKORO CHIEFTAINCY FAMILY OF LAGOS.
A declaration that the building lease executed in respect of No. 108 Nndmdi Azikiwe Street Lagos in favour of the 1st & 2nd defendants either the 3rd 6th defendants OR their servant’s agent’s privies or cohort is wrongful, illegal, null & void and of no effect whatsoever”.

The lower Court at page 58 of the records of appeal while striking out the action filed by the Appellants said as follows and I quote.
It is however surprising that while registered instruments of 19th century and early 20th Century were exhibited, there is no iota of proof that a formal mandate was given by the three branches of the Obanikoro Chieftaincy families represented by these Plaintiffs to institute this action.
I am aware of the submissions of Counsel for the Plaintiffs and the authorities cited to the effect that when it comes to protecting the interest of the family in property no mandate or authorisation is required or necessary. It is always a good exercise and practice to read the body of the case law and reports and not merely the abridged precis as the ratio decidendi may be lost through abridgment. Circumstance of this case where members of the branches of the Obanikoro Chieftaincy family are fighting over ownership of a property is quite different when compared with external aggression.

Even in the much cited authority of AKAPO V HAKEEM-HABEEB (1992) 6 NWLR (pt. 247) 266 at 293 where KARIBI-WHYTE said; The head of the family can institute actions for and on behalf of the family.
The expression of the Supreme Court justice about express mandate seems to me to be a written authorisation duly signed by those competent to do so.
The central issue considered by the learned trial Judge in arriving at a decision in this case is just that, the Plaintiffs Appellants have no right to institute an action on behalf of the family without express authorisation to do so. The learned trial Judge took guidance from the decision of the Supreme Court inAKAPO vs. HAKEEM-HABEEB (supra). I am fully convinced that the learned trial judge in the instant case properly applied the law as it is. It is the law that head of the family can institute actions for and on behalf of the family and such actions are valid but to the contrary no individual member or collections of members of the family have legal right to enter into contracts for or on behalf of the family, such contracts without the participation of the head of the family are void, and no individual member of the family without express mandate from the family can commence action in Court for and on behalf of the family, and where a family member or members proceed to commence action on behalf of the family without express authorisation the action shall be incompetent and therefore liable to be struck out.
The application seeking to dismiss the suit is at page 23 – 25 of the records of appeal, the deponent stated in the affidavit in support of the motion that he had the authority of the Obanikoro family to challenge the authority of the Plaintiffs to bring the action, and that he is also a principal member of the Deyari branch of the Obanikoro family and therefore competent to challenge the authority of the Plaintiffs to bring the representative action. Since the deponent in the Affidavit in support of the Application disclosed his status as a member of the family the Appellants seek to represent, a fact which was neither denied nor challenged by the Appellants, it suffices to say that the challenge to the representative capacity of the Appellants was in order, rendering the decision in ELF-PETROLEUM NIG LTD Vs. DANIEL C. UMAH & ORS (Supra) relied upon by the Appellants inapplicable to the instant case.
Having failed to dislodge the status of the deponent as a member of the family which the Appellants purports to represent, the Appellants cannot be heard to say their capacity to commence the present action cannot be challenged by the Respondents; rather, as the fact on record shows, it is incumbent on the Appellants to show that they have the express authority of the family to commence the suit.
In AKAPO Vs. HAKEEM-HABEEB (Supra), the Supreme Court of Nigeria held as follows and I quote:
It is well established principle of our law that the position of the head of family particularly in societies with recognised chieftaincies with respect to the control and management of its properties is dominant. The chief is the head of the family. He is in charge and control of the family property. He collects revenue from the family property, and makes recognised disbursements in respect of legitimate expenditure in the interest and for the purposes of the family.
The head of the family can institute actions for and on behalf of the family.
Contracts made by the head of the family for and on behalf of the family are valid: See: Balogun v. Balogun …. (1935) 2 WACA. 290.
On the other hand, no individual members of the family have legal capacity to enter into contracts for and on behalf of the family. Such contracts without the participation of the head of the family are void. See: Agaran v. Olushi (1907) 1 NLR 66.
Again, no member of the family without the express mandate from the family can institute action in Court for and on behalf of the family. (Underlining mine).
I am in complete agreement with the learned trial Judge that, since there was no express authorisation for the Plaintiffs/Appellants to institute the action on behalf of the Obanikoro Chieftaincy family, the action is incompetent and therefore deserves to be struck out.

The sole issue for determination is therefore resolved in favour of the Respondents against the Appellants, and it follows therefore that this appeal is devoid of merit and it is accordingly dismissed, the Ruling delivered by Akinsanya J on the 7th day of December 2001 in suit No. LD/3543/2000 is affirmed.
Parties shall bear their respective costs.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I entirely agree with, and do not desire to add to, the reasoning and conclusion in the leading judgment of my learned brother, Tijjani Abubakar, JCA, which I was privileged to read in draft.

I adopt the reasoning and conclusion as mine and equally join in dismissing the appeal for being devoid of merit. I abide by the consequential orders contained in the leading judgment.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I had the privilege of reading the draft copy of the judgment just delivered by my learned brother TIJJANI ABUBAKAR, JCA and I am in agreement with the succinct reasoning and conclusion reached therein. I have nothing more to add.

I too dismiss the appeal as devoid of merit. The Ruling of the lower Court is accordingly affirmed. I also abide by the consequential orders therein.

Appearances: